HomeMy WebLinkAboutCC Resolution 13500 (Public Education and Feasability)RESOLUTION NO. 13500
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES
AGREEMENT IN AN AMOUNT NOT TO EXCEED $70,000 WITH TBWB STRATEGIES
TO PROVIDE PUBLIC EDUCATION AND FEASIBILITY OF A
POTENTIAL REVENUE MEASURE
WHEREAS, the City of San Rafael desires services related to public education and
outreach and feasibility of a potential revenue measure; and
WHEREAS, TBWB Strategies has the skills and experience to conduct such a survey.
NOW, THEREFORE LET IT BE RESOLVED the City Council of the City of San
Rafael hereby authorizes the City Manager to execute a professional services agreement in an
amount not to exceed $70,000 with TBWB Strategies, in a form to be approved by the City
Attorney.
I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing
Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council
of said City held on Tuesday, the 19th day of February, 2013 by the following vote, to wit:
AYES: COUNCILMEMBERS: Colin, Connolly, Heller, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
a e.. 1-2-ee 2--c
ESTHER C. BEIRNE, City Clerk
MANAGEMENT CONSULTING AGREEMENT
THIS MANAGEMENT CONSULTING AGREEMENT ("Agreement") is made
effective as of March 1, 2013 (the "Effective Date") by and between CITY OF SAN
RAFAEL ("Client") and PUBLIC FINANCE STRATEGIES LLC, DBA TBWB
STRATEGIES, a California Limited Liability Company ("TBWB").
RECITALS
A. Client needs assistance evaluating the electoral feasibility of a Revenue
Measure, developing a measure for the ballot and implementing a public
outreach and communications program to raise awareness of the Client's
funding needs.
B. TBWB is a professional consulting firm that provides ballot measure
electoral feasibility, public outreach and communication consulting services.
C. Client desires that TBWB provide certain consulting services to Client with
respect to a revenue measure ("Revenue Measure') pursuant to the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties agree as follows:
Engagement of TBWB. During the term of this Agreement, Client hereby
engages TBWB to perform the following services (collectively, "Services"):
a. Feasibilitv Assessment. TBWB shall perform any of the following
services as needed to assess the electoral feasibility of the Revenue
Measure for Client:
1) Develop potential Revenue Measure strategies to meet Client's
funding needs to be tested in polling;
2) Collaborate with Client's pollster to design, conduct and analyze an
opinion survey of voters within Client's jurisdiction to assess the
electoral feasibility of a Revenue Measure;
3) Conduct a demographic analysis of voters within Client's jurisdiction
and how they break into key sub -groups by age, ethnicity, political
party, length of residency, and other key criteria;
4) Analyze past election results in the jurisdiction and region to
understand voter turnout trends and other relevant voting patterns;
5) Research other local tax proposals that may be heading to an
upcoming ballot that could compete with Client's Revenue Measure;
and
6) Make a specific recommendation regarding type of revenue measure
to pursue, optimal election date, election type (polling place or mail-
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in), tax rate, tax structure and other important Revenue Measure
features to the District.
b. Ballot Measure Development. Prior to Approval of a Revenue Measure
by Client's governing body (the term "Approval" meaning the governing
body having taken action to adopt a resolution or ordinance calling for
an election with respect to the Revenue Measure), TBWB shall perform
the services described in items 1-8 below, as needed, to assist Client in
preparing the Revenue Measure for the ballot, and within fourteen (14)
days after Approval of a Revenue Measure, TBWB shall perform the
services described in item 9 below, as needed, each of the services to be
subject to Client's approval as required by Section 7 below:
1) Recommend a final tax type, tax rate, duration and tax structure;
2) Recommend the final the list of projects, programs and services to be
funded by the measure and prepare messaging that clearly
articulates how these projects and programs will benefit from
additional revenue provided by the measure;
3) Recommend any exemptions and procedures for qualifying for
exemptions (e.g. senior exemption applications and process);
4) Recommend procedures for the taxpayer accountability protections,
including a process for an independent citizens' oversight committee;
5) Work with legal counsel to develop a resolution and / or ordinance
calling for the election;
6) Work with legal counsel to develop the 75 -word ballot question;
7) Work with legal counsel to develop and refine the full text of the
measure and other materials that will appear in the ballot pamphlet
mailed to all voters;
8) Present recommendations, documents and resolutions to Client's
administration and governing body for approval; and
9) Work with the City Clerk/ County Registrar of Voters Office to assist
Client in completing the process of qualifying for the ballot.
c. Public Information. Prior to, and up to fourteen (14) days after,
Approval of a Revenue Measure, TBWB shall perform any of the
following services as needed to raise awareness of Client's funding
needs and the Revenue Measure proposal, each of the services to be
subject to Client's approval as required by Section 7 below:
1) Develop informational fact sheets to be distributed at community
functions
2) Provide content related to the Revenue Measure to be added to
Client's website, included in email updates and added to newsletters
3) Prepare PowerPoint presentations for community meetings
4) Write, design, and produce mailings to educate, inform and engage
voters
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5) Develop strategies and plans to inform and engage key internal
stakeholder groups
6) Develop strategies and plans to inform and engage influential
external groups including elected leaders, business leaders, city
leaders, ethnic community leaders, faith community leaders,
taxpayer groups and others
d. Empip�ent„ of Additional _ Personnel. In connection with the
consulting services to be provided under this Agreement, TBWB shall
utilize its own employees and retain third party vendors pursuant to
Section 3.b. TBWB shall not be required to employ any additional
personnel to assist TBWB in the performance of TBWB's duties. TBWB
may recommend that Client hire additional personnel to assist TBWB.
Any such personnel shall be hired and paid by Client, under the
direction and control of Client, and may be discharged by Client. In
every instance, such additional personnel shall be considered an
employee of Client, not TBWB. Notwithstanding the foregoing, the
parties understand and agree that TBWB intends to hire the firm of
PMCohen Public Affairs to perform certain services under this
Agreement at no additional cost to Client. PMCohen Public Affairs shall
in no event be considered to be or act as an employee of Client. The
foregoing shall not limit TBWB's right to hire, pay, and/or discharge its
own employees.
2. Term of Aereement. The term of this Agreement ("Term") shall commence
on the Effective Date and shall continue until the earliest of:
a. Fourteen (14) days after Approval of the Revenue Measure.
b. Either party having terminated this Agreement at any time without
cause by giving thirty calendar (30) days' advance written notice to the
other party.
c. Termination of this Agreement by TBWB at any time for non-payment of
any amount owed to TBWB under Section 3.
3. Compensation. In consideration for the Services to be rendered by TBWB
pursuant to this Agreement, Client shall pay the following fees to TBWB:
a. Base Consulting Fee. TBWB shall be paid a Base Consulting Fee of
$10,000 per month, payable within 30 days of receipt of invoice. The
Base Consulting Fee shall be calculated on a pro -rata basis for the initial
and/ or final month of service if less than a full calendar month.
b. Payments on Certain Purchases and Rentals. All media and advertising
goods and services shall be purchased or rented from TBWB by Client
according to the agreed upon schedule of prices, which is attached
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hereto as Exhibit 1 and incorporated herein by reference. The schedule
of prices lists the entire cost of purchasing or renting media goods and
services from TBWB. TBWB shall in turn subcontract the work to third
party vendors, giving preference to third party vendors who donate or
discount their services. Payment for such items shall be made in advance
by Client to TBWB, or to the third party vendor at the discretion of
TBWB.
c. Reimbursement of Expenses. Client shall reimburse TBWB for expenses
incurred by TBWB from time to time in connection with the performance
of the Services described herein, which includes, but is not limited to,
automobile mileage at the established IRS reimbursement rate at the
time at the time of travel, parking fees, copying fees, telephone charges,
postage and other out-of-pocket expenses. TBWB shall submit a report
of actual expenses, and within thirty (30) days thereafter, Client shall
reimburse TBWB in full. Expenses billed to Client shall not exceed
$1,000 in the aggregate, per calendar month without the verbal or
written approval of Client. Any verbal approval shall be confirmed in
writing by either party. Client may designate in writing an individual(s)
with authority to approve expenses on Client's behalf.
d. Not -to -Exceed Limit. Total compensation related to this Agreement
shall not exceed $70,000.
4. Insurance.
a. During the term of this Agreement, TBWB and any subcontractor
shall maintain, at no expense to the CLIENT the following insurance
policies:
A commercial general liability insurance policy in
the minimum amount of one million ($1,000,000)
dollars per occurrence for death, bodily injury,
personal injury, or property damage.
ii. An automobile liability insurance policy, for
owned, non -owned, and hired vehicles, in the
minimum amount of one million ($1,000,000)
dollars per occurrence.
iii. If any licensed professional performs any of the
services required to be performed under this
Agreement, a professional liability insurance policy
in the minimum amount of one million ($1,000,000)
dollars to cover any claim arising out of the
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TBW'B's performance of services under this
Agreement.
b. The insurance coverage required of TBWB in Subparagraph A above,
shall also meet the following requirements:
i. Except for professional liability insurance, the
insurance policies shall be endorsed for contractual
liability and personal injury.
ii. Except for professional liability insurance, the
insurance policies shall provide in their text or
shall be specifically endorsed to name the CLIENT,
it's officers, agents, employees, and volunteers, as
additionally named insureds under the policies,
and to provide that the insurance shall be primary
with respect to any insurance or coverage
maintained by the CLIENT and shall not call upon
the CLIENT's insurance or coverage for any
contribution.
c. TBWB shall provide to CLIENT's Project Manager, (a) Certificates or
Insurance evidencing the insurance coverage required herein, and (b)
test from the insurance policies or the endorsements as specified in
Subparagraph b(ii).
d. The insurance policies shall provide that the insurance carrier shall
not cancel, terminate or otherwise modify the terms and conditions of
said insurance. policies except upon ten (10) days written notice to
CLIENT's Project Manager.
e. If the insurance is written on a Claims Made Form, then, following
termination of this Agreement, said insurance coverage shall survive
for a period of not less than five years.
f. The insurance policies shall provide for a retroactive date of
placement coinciding with the effective date of this agreement.
g. The insurance shall be approved as to form and sufficiency by
PROJECT MANAGER and the City Attorney.
5. Indemnification and Limitation of Liability.
a. Each party (the "Indemnifying Party") agrees to indemnify, defend and
hold harmless the other party (the "Indemnified Party") from all losses,
liabilities, damages, claims, costs or expenses (including reasonable
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attorney fees or court costs) resulting solely and directly from the
Indemnifying Party's, or its officers', employees', agents' or volunteers',
breach of any provision in this Agreement, willful misconduct,
negligence, or infringement of any patent, copyright, trade secret, or
other proprietary right related to any material the Indemnifying Party
furnished to the Indemnified Party pursuant to this Agreement;
provided, however, this Section does not cover any acts or omissions by
any third party pollsters. For avoidance of doubt, TBWB shall not have
any liability arising from the use of materials approved by Client as
provided in Section 7 hereof. The Indemnified Party agrees to give the
Indemnifying Party prompt written notice of any claim or other matter
as to which it believes this indemnification provision applies, and to co-
operate with the Indemnifying Party in the defense of any such claim or
other matter.
b. TBWB's sole and maximum liability arising out of, or related to, this
Agreement or the Services shall not exceed the upper limit of TBWB's
professional liability insurance coverage. TBWB shall provide to Client
a certificate of insurance confirming the amounts such of coverages and
shall maintain such policies in full force and effect during the Term. . In
no event shall TBWB be liable for indirect, incidental, special,
consequential, punitive or exemplary damages arising out of or related
to this Agreement or the Services.
6. Interest Clause. In the event that any amount owed to TBWB is not paid
when due, such amount will bear interest from the due date until paid at the
rate of 1.59ro per month, calculated on the basis of a 30 day month, or the
maximum amount permitted by applicable law, whichever is lower.
7. Exvenditure Authoritv. Only Client, or a person designated by Client, shall
have the authority to approve any single expenditure in excess of $500.
TBWB shall not commit Client to any expenditure, nor incur any obligation
on behalf of Client, in excess of $500 without verbal or written approval from
Client. TBWB shall not spend more than the amount so approved plus 517o
without securing additional approval from Client. Any verbal approval
shall be confirmed in writing by either party. Client may designate in
writing an individual(s) with authority to approve expenditures on Client's
behalf.
8. Avoroval of Materials. Client is responsible for giving final approval of
materials developed by TBWB for distribution to the public, including,
without limitation, informational fact sheets, Client's website content related
to the Revenue Measure, PowerPoint presentations for community meetings,
and mailers. Approval of mailers must be given in writing by the City
Manager or her designee. Approval of all other materials besides mailers
may be given verbally or in writing by any authorized agent of Client.
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9. Termination Pavments. Upon termination of this Agreement, Client shall
pay TBWB the following.
a. Base Consultine Fee. Client shall pay TBWB on the termination date any
Base Consulting Fee that is owed under Section 3.a for Services
performed up to and including the date of termination.
b. Reimbursement for Payments to Vendors. Upon termination of this
Agreement, Client shall pay TBWB on the termination date all amounts
advanced by TBWB pursuant to Section 3.b that have not been paid by
Client, including, but not limited to, any amounts owed to third party
vendors retained by TBWB and any cancellation fees charged by such
third party vendors.
c. Reimbursement of Expenses. Within thirty (30) days after termination of
this Agreement, TBWB shall submit a final accounting of TBWB's
expenses pursuant to Section 3.c, and within ten (10) days thereafter,
Client shall pay TBWB for all expenses incurred on behalf of Client.
10. Provrietary Rights and Licenses.
a. Any idea, improvement, invention, discovery, process, development,
design, know-how, data, logo, trademark, service mark, or work of
authorship (collectively referred to as "Developments" and which shall
include all intellectual property rights related thereto) conceived of,
developed, or first reduced to practice in the performance of Services
hereunder for Client shall be and remain the exclusive property of
TBWB and may be treated and dealt with by TBWB as such without
payment of any consideration to Client. The Development intellectual
property rights shall include any patents, copyrights, moral rights,
trademarks, trade secrets, industrial design, maskworks, and all other
similar rights and protections, including without limitation all
applications for registration of any of the foregoing, anywhere in the
world (in each case, whether or not patentable or registrable under
patent, copyright, trademark, or similar statutes). Client shall make
reasonable efforts to preserve such Developments as confidential during
the Term of this Agreement and thereafter consistent with applicable
laws, and, upon TBWB's request, shall execute such documents and
instruments as TBWB shall reasonably request as necessary to confirm
and vest title to such Developments in TBWB under any applicable law.
b. TBWB hereby grants Client a perpetual, royalty -free, non-exclusive right
and license (but without the right to sublicense) to use, modify,
reproduce, perform, release, display, create derivative works from, and
disclose Developments within the Client's jurisdiction for any legitimate
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civic purpose, which shall not include any commercial purpose or
impermissible advocacy activities prohibited by applicable law.
11. Compliance with Relevant Laws. Client agrees to comply, during the course
of this Agreement, with all applicable Federal, State and Municipal laws,
including any applicable public disclosure laws and any applicable laws
governing the expenditure of public funds, and obtain the necessary legal,
accounting, and other Services necessary to comply with all such laws.
Client is solely responsible for determining whether the Services performed
by TBWB under this Agreement constitute permissible informational
activities or impermissible advocacy activities pursuant to applicable law.
Client acknowledges that TBWB does not provide any guidance or advice in
this regard and Client's legal counsel has final review and responsibility for
compliance with all legal requirements.
12. Relationship Between the Parties. Nothing contained in this Agreement
shall be deemed or construed to create a partnership, joint venture or any
relationship other than an independent consulting relationship between
Client and TBWB, and f or its subcontractors, or cause TBWB to be
responsible in any manner for the debts and obligations of Client.
13. Attornevs' Fees. If either party retains counsel to represent that party in any
controversy, dispute or claim arising out of or relating to this Agreement,
including any claim for the purpose of enforcing, or preventing the breach
of, any provision of this Agreement, obtaining damages by reason of any
alleged breach of any provision of this Agreement, obtaining a declaration of
such party's rights or obligations under this Agreement, or obtaining any
other legal remedy (a "Dispute"), before an arbitrator or a court of competent
jurisdiction, the prevailing party shall be entitled to reasonable attorneys'
fees and costs, in addition to any other relief to which the prevailing party
may be entitled.
14. Limited Warrantv. TBWB warrants that it shall perform the Services in a
professional manner in accordance with commercially reasonable industry
standards for similar services. TBWB makes no warranty, express or
implied, concerning the results of the Services, including, without limitation,
the success of the Revenue Measure. TBWB makes no warranty concerning,
and is not responsible for, any services performed by third party pollsters.
To the full extent permitted by law, all implied warranties are hereby
excluded.
15. Arbitration. To the fullest extent permitted by law, any Dispute, as defined
in Section 12, shall be settled by binding arbitration administered by the
American Arbitration Association in San Francisco, California under its
Commercial Arbitration Rules that are in effect at that time ("Rules"), which
may be obtained from www.adr.org or from any AAA office. In the event of
any conflict between the Rules and this Section, this Section shall apply. The
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parties agree to submit to the jurisdiction of a single neutral arbitrator
selected in accordance with the Rules. The arbitration shall be governed by
the laws of the State of California, including, but not limited to, the
California Arbitration Act (Code of Civil Procedure § 1280 et seq.). The
arbitrator shall have discretion to award damages, and to fashion any other
remedy or relief otherwise available under applicable law in a court
proceeding. The arbitrator shall award the prevailing party reasonable
attorneys' fees and costs pursuant to Section 12. The arbitrator shall provide
a written award, including findings of fact and the conclusions of law on
which the decision is based. The arbitrator shall not have the power or
authority to commit errors of law or legal reasoning. The parties each
expressly waive the right to a jury trial, and agree that the arbitrator's award
shall be final and binding on the parties; provided that any award shall be
reviewable for legal error, confirmation, correction or vacatur pursuant to
California Code of Civil Procedure §1285 et seq. Any action to review the
arbitration award shall be filed and maintained in a California state court of
competent jurisdiction.
16. Assignment. Client shall not have the right to assign Client's rights or
delegate Client's obligations under this Agreement without the prior written
consent of TBWB, which consent may be withheld in TBWB's sole and
absolute discretion. Any attempted assignment or delegation in violation of
this provision is void and will entitle TBWB to terminate this Agreement.
17. Exclusivitv of the Agreement. During the Term of this Agreement, Client
shall not engage any other person or entity to perform any acts or services to
be performed by TBWB under this Agreement without the prior written
approval of TBWB. TBWB's right to perform consulting, media
management, or any other services for any other person or party shall not be
limited in any way.
18. Notices. Any notice required or permitted under this Agreement shall be in
writing and shall be addressed to the other party at the address set forth on
the signature page of this Agreement. A notice shall be effective (i) upon
personal delivery if given by hand delivery, (ii) the date of the completed
transmission if given by facsimile, (iii) one business day after deposit,
prepaid, with Federal Express or similar overnight delivery service for next
business day delivery, or (iii) two business days after deposit with the
United States Post Office, by registered or certified mail, postage prepaid.
Each party may, by five days advance written notice to all other parties,
specify any other address for the receipt of such notices.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to its subject matter, and it supersedes and
replaces any prior or contemporaneous understandings or agreements,
whether written or oral, between the parties with respect to such subject
matter. No party has been induced to enter into this Agreement by, nor is
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any party relying on, any representation or warranty outside those expressly
set forth in this Agreement.
20. Applicable Law. This Agreement and the rights of the parties shall be
governed by and construed and enforced in accordance with the laws of the
State of California, except that the Agreement shall be interpreted as though
drafted jointly by both parties.
21. Severability. In case one or more of the provisions contained in this
Agreement, or any application of the provisions, shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement, and any other application thereof,
shall not in any way be affected or impaired.
22. Captions for Convenience. The captions and headings in this Agreement are
for convenience only and shall not be considered in interpreting any
provision of this Agreement or in determining any of the rights or
obligations of the parties to this Agreement.
23. Waiver and Amendment. No breach of any provision of this Agreement
can be waived unless in writing. Waiver of any one breach shall not be
deemed to be a waiver of any other breach. This Agreement may be
amended only by a written agreement executed by the parties hereto at the
time of the modification.
24. Binding Effect. This Agreement shall be binding upon, and inure to the
benefits of, the parties and their respective heirs, executors, administrators,
successors and permitted assigns.
25. Counterparts; Facsimile Signature. This Agreement may be executed in any
number of counterparts, each of which will be an original, but all of which
together will constitute one Agreement. The parties agree that signatures on
this Agreement transmitted via facsimile have the same force and effect, and
are considered the same as, originals.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Management
Consulting Agreement as of the date first written above.
TBY'STR A G I RES
By:
Name: Charles Heath
Title: Partner
Address for Notices:
400 Montgomery Street, Suite 700
San Francisco, CA 94104
CLIENT
By:
Name: Nancy Mack 1p
Title: -City Manager. City of San Rafael
%' A f- to C t
Name: A2 WfzZ9
Title: F-.t.hpr r, Beirnp, City Clerk
By: ADDroved as to form:
Name:—La t .4n 9FE
'R&X Robert F- Epstein, City Attorney
Address for Notices:
1400 Fifth Ave.
San Rafael, CA 94901
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Exhibit 1
Schedule of Prices
To: City of San Rafael
From: TBWB Strategies
Subject: Informational Mail Pricing
Date: February 11, 2013
Estimated quantity of all voter households:
17,482
Cost for brochures (11x17 or equivalent,1 or 2 -fold, 4 -color): $17,112
Price includes design, pre -press, print, labels, labeling, post office check-in,
stock photography, postage, shipping and sales tax.
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